* Disclaimer: The following is based on internet research. I am not a legal expert, just an observer.
Authors, journalists, publishers, bloggers can be accused of defamation and there have been significant and extremely costly legal cases. A new law, The Defamation Act 2013 introduces a ‘serious harm’ threshold which may mean fewer cases will come to court by rebalancing the law by providing more effective freedom of speech.
So what is ‘defamation?’
Defamation is when you injure a person’s reputation; in legal speak, it’s when you “lower them in the estimation of the community or deter third persons from dealing with them.” It’s a false statement of fact. Only living people can sue for defamation; heirs cannot make a claim about a deceased relative’s reputation.
The allegedly defamed person must prove that he is identifiable to readers by the setting, physical description or other factors. Changing someone’s name and physical description is a good start, but it isn’t necessarily enough to prevent a lawsuit. Truth, however, is always a defense to a defamation charge. As long as you can prove your ex cheated on his taxes, he cannot sustain a defamation claim.
What if you don’t have proof? A defamation claim can be based only on something stated as fact—so, the good news is that your opinions are protected expression. That said, don’t think simply couching your accusation as opinion—“It’s my opinion that John Jones deals drugs,” or, “I believe Sara Smith embezzles from her employer”—is an easy cop out. Any such opinions need to be clearly relevant to your story, and should be supported with viable evidence or reasoning.
At the other end of the spectrum, if you self-publish without sales goals in mind—if your book reaches only, say, a few dozen people—then the bright side is that you probably won’t get sued.
At the front of your book you can include a disclaimer: “This work is loosely based on actual events. Any resemblance to persons living or dead is purely coincidental.”
What is The Defamation Act 2013?
Under the Defamation Act, a statement can be said to be defamatory if its publication “caused or is likely to cause serious harm” to individuals’ or businesses’ reputation. However, only if businesses have suffered, or are likely to suffer, “serious financial loss”, can they bring a claim of defamation against commentators by requiring claimants to show actual or probable serious harm (which for-profit bodies is restricted to serious financial loss), before suing for defamation in England or Wales,
The Defamation Act 2013 applies to causes of action occurring after its commencement on 1 January 2014; old libel law will therefore still apply to many 2014 – 2015 defamation cases where the events complained of took place before commencement.
The Act introduces a ‘serious harm’ threshold
This new threshold ‘raises the bar’ for claimants looking to bring a defamation action. Those looking to allege defamation will need to show that a statement has caused or is likely to cause, ‘serious harm’ to the claimant’s reputation. In situations where the claimant is a corporate entity, section 1(2) states that:
“harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.”
This does not mean that companies will need to show financial loss at the outset. However, there is a clear move to considering whether serious financial loss is a likely result as a consequence of the statement being made.
The effect of the new ‘serious harm’ threshold is that parties should be dissuaded from bringing trivial actions for comments that have little or no impact on the individual’s/company’s reputation or financial position.